Huynh v Parilla East Pty Ltd
[2009] NSWWCCPD 86
•29 July 2009
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR CITATION: Huynh v Parilla East Pty Ltd [2009] NSWWCCPD 86 APPELLANT: Thi Anh Hong Huynh RESPONDENT: Parilla East Pty Ltd INSURER: GIO General Limited FILE NUMBER: A1-7904/08 ARBITRATOR: Mr D Minus DATE OF ARBITRATOR’S DECISION: 7 April 2009 DATE OF APPEAL DECISION: 29 July 2009 SUBJECT MATTER OF DECISION: Duty to give reasons for decision PRESIDENTIAL MEMBER: Deputy President Kevin O’Grady HEARING: On the papers REPRESENTATION: Appellant: Gajic & Co Lawyers Respondent: Hicksons ORDERS MADE ON APPEAL: 1. Paragraph 1 of the Arbitrator's decision dated the 7 April 2009 is revoked and the following order is made in its place:
“1. Award for the applicant at the rate of $203.95 per week from 26 August 2008 to date and continuing pursuant to section 40 of the WorkersCompensation Act 1987.”
2. Paragraphs 2 and 3 are confirmed.
3. The respondent is to pay the appellant's costs of the appeal.
BACKGROUND TO THE APPEAL
1.Ms Thi Anh Hong Huynh (the worker) commenced employment as a dispatch worker with Parilla East Pty Ltd (‘the respondent’) on 23 October 2006. On 3 October 2008, she brought proceedings in the Workers Compensation Commission (‘the Commission’) against the respondent alleging injuries to her neck, back and right shoulder as a result of the nature and conditions of her employment from January 2007 to March 2007.
2.The worker claimed weekly compensation, medical expenses and lump sums.
3.At a teleconference held on 7 November 2008 the worker amended her claim for weekly compensation as being from 26 August 2008 to date and continuing.
4.An order was made at that time referring the worker to Dr Giblin, an approved medical specialist (‘AMS’). A medical assessment certificate (‘MAC’) issued on 16 December 2008 certifying that the worker had 0% whole person impairment (WPI).
5.An arbitration hearing was held on 9 March 2009. Mr Trainor of counsel appeared for the worker, who was present at the arbitration and was assisted by a Vietnamese interpreter. Mr Halligan of counsel appeared for the respondent. Ms Terrye Lawther, Logistics Manager for the respondent, gave oral evidence and was cross-examined. The proceedings were recorded and a transcript of that evidence and the submissions of the parties (‘ transcript’) is available before the Commission.
6.A Certificate of Determination and Statement of Reasons (‘reasons’) were issued to the parties on 7 April 2009.
7.On 4 May 2009, the worker sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Commission.
8.The respondent filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 26 May 2009.
THE DECISION UNDER REVIEW
9.The Certificate of Determination dated 7 April 2009, recorded the Arbitrator’s orders as follows:
“1. There is an award for the Applicant in respect of her claim for weekly compensation. The Respondent is to pay the Applicant, pursuant to s 40 of the Workers Compensation Act 1987, from 26/8/2008 to 16/12/2008, a period of 16 weeks, at the rate of $203.95 per week.
2. There is an award for the Applicant in relation to her claim for medical expenses and the Respondent is to pay the Applicant’s reasonable medical expenses, pursuant to s. 60 of the Workers Compensation Act 1987 on production of accounts and receipts and HIC notice of charge.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ON THE PAPERS REVIEW
10.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
11.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
12.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
13.The appeal was lodged on 4 May 2009, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
14.The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Robert Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘ . . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
15.The amount of compensation at issue on appeal is an award of $203.95 per week from 26 August 2008 to date and continuing. The monetary thresholds under section 352(2)(a) and (b) are therefore met.
16.Leave to appeal is granted.
REVIEW
17.The concept of ‘review’ under section 352 of the 1998 Act was considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where Spigelman CJ (with whom Basten JA and Bryson AJA agreed) observed at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
…
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …” .
18.The nature of “review” as appears in section 352 of the 1998 Act was again considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’). The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that this was the wrong test for the task of review of the decision under the 1998 Act.
19.In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57. Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58. Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
20.This appeal is to be conducted in accordance with those matters stated by the Court.
EVIDENCE
21.The evidence before the Commission is summarised at [9] of reasons. Omitted from that summary are the medical certificates issued by Dr Ly dated between 23 March 2007 and 27 August 2008. Those certificates were attached to an application to admit late documents dated 14 November 2008 filed on behalf of the worker on 17 November 2008. The admission of those documents is noted at page 20 of transcript.
22.A statement made by the worker dated 10 September 2008 was in evidence. The worker, who is 41 years of age and was born in Vietnam, arrived in Australia in 1997. The first employment obtained by the worker in this country was as a kitchen hand in Fairfield, New South Wales. She retained that position for the following four or five years. Thereafter the worker commenced employment with a restaurant in Cabramatta again working in the kitchen where she remained until commencing her employment with the respondent. The worker was employed full-time to work in the dispatch section of the respondent's premises. The business was concerned with the growing and packaging of vegetables and it was the worker's duty to carry boxes of vegetables and place them upon pallets for subsequent delivery. Her work also included manipulation of a pallet jack which was "very heavy". The dispatch section was very busy and the worker’s shift commenced at 7am and finished at 1pm or 2pm. Regular overtime was available and amounted to 8 to 10 hours per week.
The worker first noticed back pain in January of 2007 as she was operating the pallet jack. The worker continued to perform her duties however she experienced pain and needed painkilling medication. She reported her difficulties to a fellow worker. During February of that year the worker experienced difficulties pushing the pallet jack at which time she first noticed pain in her right shoulder. In March 2007 as the worker was pushing the pallet jack she struck her right elbow on a door handle. Following that incident the worker attended a "factory doctor" at Milperra. The worker returned to work the following day and continued to experience severe neck pain. That pain extended into the worker's right arm during the course of her work. The worker returned to consult the doctor and was advised to take one week off work.
23.During her one week absence from work the worker first consulted Dr Ly her general practitioner and sought chiropractic treatment. Upon her return to work she was assigned to work in the labelling section where she remained for six or seven months. The worker continued to consult Dr Ly and was referred by that practitioner to Dr Mark Liew. The worker was then assigned to the packing section where she has remained working to date. She has continued to experience pain in her neck, back and shoulder. Since her injury the worker’s earnings have been reduced.
24.In March of 2007 Dr Ly recorded in his clinical notes that the worker had experienced low back pain since January of that year. Included in his history was a description of her duties. It is there recorded that the worker was required to lift cartons weighing between 20 and 40 kg. The worker has continued to consult that practitioner who has issued a number of medical certificates which are in evidence, the last of which is dated 27 August 2008. That last certificate states that the worker is fit for suitable duties for 7.5 hours per day, five days per week. Also specified in the certificate were 10 minute breaks when required and avoidance of frequent movements of right arm and repetitive bending, lifting up to 8 kgs.
25.Dr Ly arranged for CT scan studies of both the worker's lumbar spine and cervical spine. The lumbar spine study dated 26 March 2007 was conducted by Dr M Sequeira. In the body of the report it was stated that the L5/S1 disc "... is seen encroaching on the right lateral recess and this would cause impingement of the S1 nerve root." The summary was expressed as follows:
· Lumbar spondylosis with bulging annuluses throughout the lumbar region.
· There is broad-based bulging of the L4/5 disc.
· Central and right lateral protrusion of the L5/S1 disc.
26.There is a questionnaire completed by Dr Ly at the request of Konekt Australia Pty Ltd dated 19 June 2007 which sets out detail of his diagnosis, treatment and a summary of the appellant’s work limitations.
27.The cervical spine study dated 6 June 2007 was conducted by Dr KP Wong. That practitioner's comment was – “There is some central disc bulge at C3/4 and C4/5 disc levels touching onto the thecal sac. Existing nerve roots remain intact. No other abnormalities seen.”
28.Dr Mark Liew, Rheumatologist, in his report dated 27 April 2007 expressed the opinion that the worker appeared to have significant ongoing cervical pathology with right-sided cervical neuralgia and lumbar pathology associated with symptoms of sciatica. No mention is made in that report of the March CT scan conducted by Dr Sequeria. The view was expressed that an MRI scan was required. The report records that such further investigation had been arranged. It is clear from other evidence that approval of the insurer for that further investigation was not forthcoming. Dr Liew expressed the opinion that the nature of her work had contributed significantly to the development of her symptoms and disabilities.
29.A report dated 28 May 2008 of Dr Clive Sun was relied upon by the worker. Dr Sun had been qualified by the worker's solicitors to provide a report for the purposes of her claim. The opinion was expressed that:
“The clinical picture is consistent with cervicothoracolumbar sprain with disc lesions in the cervical and lumbar regions and significant neural compromise in the lumbar spine documented on CT scan.”
30.It was Dr Sun's opinion that the nature and conditions of employment were a substantial contributing factor to her ongoing impairment and disability. He assessed a Whole Person Impairment (WP I) of 21%. It is to be noted that on examination Dr Sun detected “right leg weakness in the L5 distribution”.
31.It is recorded in the clinical notes of Dr Ly during a consultation on 30 May 2008 that the MRI “…has to date NOT been approved by the insurance (sic) as yet”.
32.Correspondence dated 14 July 2008 from GIO General Ltd, the respondent’s workers compensation insurer, addressed to the worker gave notice of intention to cease payment of medical hospital and associated expenses from 14 July 2008 and of weekly compensation from 25 August 2008.
33.The worker relied on a number of further documents which were attached to her application including wage records the content of which, where relevant, is addressed below.
34.The respondent relied upon a report of Dr Frank George Machart dated 28 April 2008. That practitioner examined the worker on 24 April 2008. That report contains a summary of the worker's history of injury, her treatment, current symptoms and a summary of findings on physical examination. Reference is also made to “X –rays”. It is not clear from the report as to whether that practitioner had access to the scans or whether reliance was placed upon the accompanying reports by Doctors Sequeira and Wong. The X ray findings were summarised as follows:
· 26/03/ 2007 lumbar spine CT. This showed spondylosis at L3/4, L4/5 and L5/S1. There is a small right-sided central disc protrusion at L5/ S1 without impact on neural structures.
· 26/03/2007 (sic - 6/6/ 2007) Cervical spine CT: this showed moderate spondylosis at C5/6 with osteophytes anteriorly and mild spondylotic changes to C3/4 C4/5 andC6/7.
35.Dr Machart’s diagnosis was expressed as follows:
1. Spondylosis at multiple levels in the cervical and lumbar spine.
2. Soft tissue bruise at the outer aspect of the right elbow - healed.
3. No specific structural injury to the cervical or lumbar spine, right shoulder or right elbow in relation to work injury.
4. Symptom severity appears to be overstated.
5. Symptoms in several areas of the body, as described, are inconsistent with the history of injury.
36.Dr Machart expressed the view that the worker was fit for pre - injury duties. He so concluded “because her fitness for work was not altered by injury at work. Work injury is now healed.” He also concluded that the worker had sustained 0% WPI.
37.The respondent relied upon a Workplace Assessment Report compiled by Konekt Australia Pty Ltd which was signed by Ms Blagus. At pages 6 and 7 the worker's duties were described. It is clear from the matters recorded that there is a dispute between the worker and her employer as to the nature of her pre-injury duties. The dispute concerns the weight of items required to be lifted by the worker. This matter is more fully addressed below.
38.The respondent relied upon another report by that same organisation again signed by Ms Blagus headed “Return To Work (Suitable Duties) Plan No. 1” dated 1 June 2007. Of significance that report contains a notation that the return to work goal for the worker was a “return to her pre-injury duties as a dispatcher with her pre-injury employer ...”.
39.The respondent also relied upon a number of return to work progress reports from that organisation, the last of which is dated 28 April 2008. Reference is made to these documents, where relevant, below.
40.The evidence of Ms Lawther referred to in [5] above is recorded between pages 21 and 38 of transcript. Ms Lawther stated in evidence that she was the Logistics and Return to Work Co-ordinator employed by the respondent. That evidence, which is more fully addressed below, concerned two matters of importance. Firstly it was stated that the company had intended to transfer the worker from dispatch to another position at about the time of the subject injuries. This assertion was the subject of cross-examination. Secondly the witness gave evidence concerning the duties presently performed by the worker and relevant wage levels. It is of significance that Ms Lawther did not give evidence of the pre-injury duties performed by the worker.
41.The MAC issued by Dr Giblin bearing date 16 December 2008 was in evidence before the Arbitrator. At the time Dr Giblin examined the worker he had available to him the CT scan lumbar spine dated 26 March 2007. He expressed the view that the scan showed “minimal age-related changes in terms of a minor disc protrusion at L4/5 and a slightly more prominent one at L5/S1. There is no evidence of neural impingement”. Dr Giblin had available the CT scan of the worker's cervical spine dated 16 June 2007. His notation concerning that investigation is as follows:
“CT scan cervical spine 6 June 2007 shows some minor age related changes in the mid-cervical spine, but no evidence of peripheral nerve or cord compression.”
42.At paragraph 7 of Dr Giblin's certificate he states a summary of injuries and diagnoses as follows:
“This lady presents with a clear history of the onset of symptom complex formation in her axial skeleton during the nature and conditions of her work environment from January 2007 to March 2007. The symptom complex formation is consistent with soft tissue injury to the affected areas particularly the low back and to a lesser extent the cervical spine.”
43.As to “consistency of presentation” the following was noted:
“There was a moderate degree of variance between the formal and informal examination. There was a degree of apprehension, anxiety and stress which was present, manifesting as a degree of somatisation of soft tissue symptoms.”
44.At paragraph 10 Dr Giblin stated the following:
“Based upon the totality of today's physical examination, I did not view any evidence of significant muscle guarding, objective physical findings, neurological changes or structural abnormalities in relation to the thoracic, cervical or lumbar spine and there was no supportive radiological evidence in either cervical or lumbar spine when the scans were viewed today.”
45.It was Dr Giblin's opinion that the worker had suffered a zero percentage WPI.
46.Dr Giblin had read a copy of the report of Dr Machart dated 28 April 2008 and stated “... I do not find that I have any variance in terms of his comments and opinions.”
47.The respondent tendered a Wages Schedule and a document which took the form of a spread sheet containing summaries of earnings of 17 employees of the respondent including the worker. It was this document that was the subject of extensive questioning during the course of Ms Lawther’s evidence.
48.A Wages Schedule prepared on behalf of the worker was in evidence as well as correspondence from the respondent addressed to the worker's solicitors dated 10 February 2009. That correspondence enclosed wage details concerning the worker and a number of fellow workers.
ISSUES IN DISPUTE
49.The issue in dispute raised by the appellant is whether the Arbitrator erred in finding that the worker had no incapacity for work beyond 16 December 2008.
50.The conduct of this appeal has, to an extent, become complicated by the fact that the respondent asserts in its submissions opposing the appeal that : “Having found that the appellant suffered from no incapacity for work the respondent maintains that the Arbitrator should have found the appellant had no further entitlement to compensation after 25 August 2008 being the expiration of the notice period in respect to the section 74 notice served on the appellant by the respondent's insurer on 14 July 2008.”
51.Whilst there is no appeal brought on behalf of the respondent it appears that the issue addressed in the aforementioned submission is one raised as a matter of contention. Given the nature of the review process as discussed in the authorities including Sapina I consider it appropriate to deal with the respondent’s argument concerning entry by the Arbitrator of a closed period award in favour of the worker when addressing the merits of the appeal generally.
SUBMISSIONS
52.The appellant in her submissions before the arbitrator concerning the issue of incapacity sought to rely upon the evidence of the medical witnesses called in her case together with that material to be found in the two CT scans. It was argued that the evidence of Dr Machart needed to be evalued having regard to a suggested misdescription by that practitioner of the findings of the CT scans. It was argued that the “overwhelming medical view”, should the opinion of Dr Marchart be rejected, was “that the applicant has a partial incapacity for work and has had so at all times since 1 April 2007”. With respect to the views expressed by Dr Giblin, the appellant sought to make the point that the question of incapacity was not addressed in the MAC.
53.The respondent argued before the Arbitrator that the content of the report of Dr Giblin was “highly persuasive”. It was properly and fairly submitted that Dr Giblin's opinion was not binding concerning the question of incapacity. It was put that the findings on examination by Dr Machart were “highly consistent” with those made by Dr Giblin. Reference was made during the course of submissions to Dr Giblin’s expressed view concerning the content of the CT scans and it was implicit that the respondent was arguing that the opinion of Dr Machart concerning the question of incapacity should be preferred to that expressed by the appellant's medical witnesses. It was also put in the course of argument that the appellant’s work performance since the alleged injury would tend to support a conclusion that she suffered no ongoing incapacity for work.
54.It is convenient at this point to examine the reasoning expressed by the Arbitrator concerning the issue of “incapacity”. That appears between [19] and [23] of reasons. At [19] of reasons the Arbitrator summarises the findings made by Dr Giblin on physical examination. Dr Giblin's views concerning the findings demonstrated on the CT scans are also summarised. The Arbitrator at [20] proceeds to quote the opinion expressed by Dr Machart which is summarised at [36] above. The Arbitrator proceeded to note that both Dr Giblin and Dr Machart had concluded that the appellant suffered nil percent WPI and that Dr Giblin had expressed agreement with Dr Machart.
55.The Arbitrator proceeded to express his preference for the opinion of Dr Machart to that of the appellant’s medical witnesses. That preference was expressed to have been founded upon the “…overall alignment with the conclusive assessment of the AMS, Dr Giblin.” Reference was made to Dr Giblin's findings on physical examination and it was noted that “both doctors were of the view that the applicant had suffered a soft tissue injury to the back as a result of her employment duties. Dr Machart, considered that the applicant had recovered from the effects of that injury.”
56.The Arbitrator proceeded to note that the “insurer accepted that the applicant had sustained an injury arising out of or during the course of her employment between January 2007 and 19 March 2007.” It was then (at [23]) the following finding was made – “based on the assessments (sic-of) Dr Giblin and Dr Machart, I find that the applicant did not have any incapacity for work as a consequence of the injury arising out of or during the course of her employment with the respondent from the date of the binding assessment by the AMS contained in the MAC published 16 December 2008.”
57.In submissions on this appeal the appellant suggests errors of fact and of law are demonstrated in the reasoning as expressed by the Arbitrator when dealing with the question of incapacity. It is put, correctly, that the views of the AMS concerning questions of incapacity were, whilst relevant, not conclusive. It was suggested that the Arbitrator had erred in relying upon the expression of opinion stated by Dr Giblin on 16 December 2008 “as negativing incapacity” from that date. The Arbitrator's reliance upon the views expressed by Dr Giblin was the subject of general criticism (at [11] of submissions).
58.The appellant in submissions proceeds to criticise the views expressed by both Dr Giblin and Dr Machart concerning the matters demonstrated on CT scans. This submission is addressed below.
59.The respondent in its submissions on this appeal challenges the suggestion made by the appellant that the Arbitrator had treated Dr Giblin's MAC as being “conclusive” concerning the question of incapacity. Reference is made to the submissions made on behalf of the respondent before the Arbitrator concerning this matter. It is argued that the Arbitrator's preference for the opinions expressed by Dr Giblin and Dr Machart is founded upon the correspondence between the findings on physical examination of the appellant made by each of those practitioners. It is put that the totality of the evidence had been addressed by the Arbitrator in the course of reaching his conclusion concerning the preference of the opinion of Dr Machart. It is noted in submissions that Dr Giblin did not, in his report, address the issue of incapacity. It is argued that the Arbitrator's use of the term “conclusive assessment” refers to Dr Giblin's assessment of WPI.
60.It was accepted by the respondent in submissions that the Arbitrator had “somewhat arbitrarily” chosen the date of the MAC as being the date upon which a finding was made as to the cessation of incapacity. It was at this point in submissions that the respondent argued that the Arbitrator had erred. It is put that there should properly have been a finding of no incapacity beyond 26 August 2008.
61.The respondent proceeds to summarise the medical evidence which was before the Arbitrator and particular attention is given to the views expressed by Dr Machart and Dr Giblin concerning the CT scan findings. It is argued that Dr Sun had “misinterpreted or incorrectly interpreted” the radiological material in evidence before him. The respondent makes reference to the Arbitrator's notation that “no MRI investigations were in evidence nor was there any further report of Dr Liew”. It is argued that “this leads to the inference on the evidence that the further investigations were either not undertaken or in the event that the investigations were arranged by Dr Liew the outcome of the MRI scans and also the further reports by Dr Liew did not assist the appellant's case.”
62.The respondent proceeds to argue that the manner in which the Arbitrator approached the question of incapacity demonstrates that he had considered the totality of the evidence, had accepted the opinion of Dr Machart as that practitioner’s view was more consistent with the findings of the AMS, was aware of the “status” of the MAC, had properly considered the opinion of Dr Sun and that his conclusions concerning Dr Liew’s opinion was “the most appropriate decision” having regard to the state of the evidence.
63.Attention is given by the respondent in the course of submissions to the difference of opinion expressed by the various medical practitioners concerning the findings demonstrated in the CT scans. It is put that the appellant in her submissions had sought to “elevate an opinion expressed by a radiologist commenting on a CT scan to a higher level than the orthopaedic surgeons.” The respondent at [3.48 ] and [3.49] of submissions proceeds to develop an argument that Dr Giblin's views concerning the radiological findings which led to a method of determining a binding assessment based upon there being no "focal pathology at L5/S1" contrasts with the appellant’s witnesses view concerning the CT scan findings. It is put that Dr Giblin's assessment, which is made in accordance with DRE category one, and being zero percentage impairment, “ is conclusive in this regard”. The argument seems to suggest that given the assessment is conclusive the basis of that assessment, namely there being no focal pathology, is likewise binding.
DISCUSSION AND FINDING
64.Resolution of this appeal requires a determination as to the correctness or otherwise of the Arbitrator's preference for the views expressed by Dr Machart concerning incapacity to those views expressed by the medical witnesses relied upon by the appellant. The opinion of that witness is summarised at [35] and [36] above. As noted above, Dr Machart considered the appellant was fit for pre-injury duties. He recorded the appellant's duties as being “lifting crates of sprouts and putting them into a cool room”. He also records the onset of neck, low back and right shoulder pain “as a result of lifting heavy crates and pushing them”. At page 4 of his report Dr Machart records that the appellant “suffered a non-structural pain in relation to physically demanding work, although there is conjecture as to the type of activity that she was doing. She reported heavy lifting. The documents attached your instructions which (sic) suggest that lifting weight did not exceed 6 kg”. Dr Machart proceeded to state “Either way, my assessment is that no significant structural injury occurred that would explain the complexity and severity of the symptoms.”
65.It must be said that there were a number of unsatisfactory aspects to the state of the evidence before the Commission at the time of the Arbitrator's determination. There is stark contrast between the appellant’s description of her pre-injury duties to the medical witnesses and that which appears at page 6 of the report of Konect dated 25 May 2007 and as conveyed to Dr Marchart. The appellant described her duties as involving lifting of weights up to 40 kg. whereas the respondent asserts that the maximum weight required to be lifted in the course of her work as a dispatcher was 6 kg. It is to be noted that, notwithstanding this conflict, no evidence concerning the nature of pre-injury duties was led when Ms Lawther was called before the Arbitrator. It is arguable that the evidence of Ms Lawther on this matter would not assist the respondent's case. This conflict is to an extent compounded by the content of the appellant's statement which, whilst poorly expressed, may be argued as supporting the respondent's description of those duties.
66.It seems that Dr Machart considered the appellant fit for pre-injury duties whether such duties involve lifting 6 kg weights or weights up to 40 kg. He concluded “… her fitness for work was not altered by injury at work. Work injury is now healed.” That conclusion was reached having regard to his findings on physical examination and his stated summary of the findings on the CT scans. As stated at [34] above it is unclear as to whether Dr Machart had access to the scans or whether he relied upon accompanying reports. Whatever the case there is inconsistency between those matters stated by Dr Machart and the interpretation of the scans noted in the reports by the radiologists Dr Sequeira and Dr Wong. With respect to the lumbar spine scan it is the view of the specialist radiologist that there is protrusion of the disc at the L5/S1 level which is described as “broad based bulging”, that the disc encroaches on the right lateral recess and, further, that such encroachment would cause impingement of the S1 nerve root. In contrast Dr Machart states that there exists “a small right - sided paracentral disc protrusion at L5/S1 without impact on neural structures.”
67.The scan of the cervical spine is reported by the specialist radiologist, Dr Wong, as demonstrating some central disc bulge at the C3/4 and C4/5 disc levels touching onto the thecal sac. Dr Machart stated that the scan demonstrated moderate spondylosis at C5/6 with osteophytes anteriorly and mild spondylotic changes to 3/4, C4/5 and C6/7.
68.It is noted at [41] above that Dr Giblin saw no evidence of “neural impingement” to be found on examination of the lumbar scan and that the scan of the cervical spine showed some minor age related changes in the mid-cervical spine, but no evidence of peripheral nerve or cord compression.
69.It may be seen from the above summary that there was conflict between the medical witnesses as to the significance of the CT scans. There was also conflict among the parties’ medical witnesses as to findings on physical examination. Such conflict is commonplace in proceedings such as the present and the Commission is regularly confronted with the dilemma which arises from such conflict in evidence. The Arbitrator in the course of his reasons summarised the differing views concerning the CT scan results however has not addressed that conflict. It appears from his reasons that the Arbitrator has placed considerable reliance upon the similarity of the assessments made by Dr Machart and Dr Giblin.
70.It is the appellant's complaint (at [12] of submissions) that the Arbitrator “should have considered all medical evidence”. It may be assumed that the submission intended was that the Arbitrator had failed to consider all the evidence. The appellant in submissions attempts to highlight the conflict above summarised.
71.The task of determining whether such criticism is well founded is made difficult by another unsatisfactory feature of the evidence as it stood before the Arbitrator. That concerns the evidence of Dr Liew. There is but one report in evidence from that practitioner. There is no evidence from Dr Liew concerning the CT scans. Whilst this is a deficiency in the appellant's case, regard may be had to Dr Liew’s findings on examination and his provisional conclusion as to diagnosis. Physical examination revealed tenderness “to compression to low lumbar segments and right sciatic notch.” Whilst Dr Liew did not have the benefit of the CT lumbar spine it may be seen that there is a correlation between what was, in Dr Sequeria’s view, demonstrated on the scan and that which was suggested on examination, namely lumbar pathology. I accept the appellant's submission concerning the Arbitrator’s failure to address this aspect of the evidence.
72.Dr Sun diagnosed “disc lesions in the cervical and lumbar regions and significant neural compromise in the lumbar spine documented on CT scan.” His physical examination of the appellant revealed “right leg weakness in the L5 distribution”. It may be seen that there is some correlation between findings on physical examination and the radiological findings. This aspect of the evidence was raised on behalf of the appellant during submissions before the Arbitrator (transcript page 40) where counsel observed that Dr Sun “records indications of radiculopathy”. Whilst the Arbitrator has made reference to the evidence it is not evident from his reasoning as to whether consideration has been given to those matters raised by counsel.
73.Whilst it is a matter for the arbitrator to determine the weight to be attached to the evidence before him it remains his duty to address the totality of the evidence and to reveal his reasoning which led to the conclusion as to which view is more logical and probative having regard to the issues as raised by the parties (see discussion by Roche DP in Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46 at [52]-[60]). The Arbitrator's omission of the evidence contained in the certificates of Dr Ly when summarising the evidence before him is of particular significance when considering the question as to whether the Arbitrator has addressed the totality of the evidence. The latest certificate issued by that practitioner on 27 August 2008 referred to at [24] includes the following summary as to the manner in which the appellant's injury occurred: “Ms Huyn works in warehouse. Her work involves lifting and moving cartons and pile them up one on top of another. Each carton would have from 6 to 12 boxes containing beansprouts all been, and each cartoon (sic) would weigh ranging from 2 kgs to 4kg.. each time that Ms Huynh carries she would often have to carry a pile of cartons, ranging from 10 to 16 of such cartons, thus weighing from 20kgs to 30 – 40kgs… and she would have to carry such heavy piles of cartons to put away a distance of about haff (sic) to 1 metre, sometimes even longer, away. Ms Huynh started to develop lower back pain since early January 2007 and as she continued to work doing her heavy lifting at work, her LBP has been deteriorating progressively turning itself into a constant pain with frequent aggravation at work from heavy lifting. On 19 March 2007, while doing heavy lifting at work, Ms Huynh started to develop pain to her right elbow and later on that day also developed right posterior shoulder pain as well ... Similarly to her lower back pain, this shoulder - right elbow pain also continued to deteriorate progressively until now, and has now become a constant pain with frequent aggravation at work due to heavy lifting.” Dr Ly was of the view that the appellant was fit for work with a restriction of lifting up to 8 kg. A number of other limitations were certified in that document. The certificate was current until 19 September 2008.
74.The appellant's criticism of the reasoning expressed by the Arbitrator includes a suggestion of error when the assessment of the AMS was described by him as “conclusive”. It is suggested by the appellant that the use of that description indicates that the Arbitrator considered Dr Giblin's views as being conclusive with respect to the question of incapacity. I do not accept that argument. At [22] of his reasons the Arbitrator, in my view, made it perfectly clear that he accepted Dr Machart alone concerning the question as to whether the appellant had “recovered” from the effects of the subject injury. It is clear that the Arbitrator was fortified in reaching that conclusion by reason of the “overall alignment” of the opinions of Dr Machart and Dr Giblin.
75.It is suggested by the appellant (at [11] of submissions) that the Arbitrator had erred in treating the AMS opinion as “the yardstick by which all other medical opinions were adjudged”. There is, in my view, nothing to be found in the reasons as expressed by the Arbitrator that would support such a contention.
76.The appellant's complaint that the Arbitrator failed to address the totality of the evidence is one which in my view has substance. I have earlier noted that the Arbitrator had set out in summary form the medical evidence before him excepting the evidence of Dr Ly. Whilst I agree with the respondent's submission (at 3.35 of submissions) that “an arbitrator is not required to set out lengthy written reasons to comply with the Act and the Rules” there exists an obligation to address the evidence having regard to the nature of the issues as raised by the parties. There is in the present matter a divergence of opinion concerning the CT scan findings. In my view the manner in which such issue has been raised in the course of proceedings required the Arbitrator to address those points of difference, evalue the evidence and express reasons for a preference of one view as distinct from another. The Arbitrator has erred in failing to conduct such an evaluation and provide his statement of reasons. As the Arbitrator's reasons stand, the only expressed basis for the acceptance of Dr Machart's view is that there was “overall alignment with the conclusive assessment of the AMS, Dr Giblin.”
77.There is no doubt that a medically qualified witness is entitled to express an opinion of all matters within the sphere of his medical expertise. In my view, the weight of the opinions expressed by the medical witnesses in the present case concerning the CT findings needs to be assessed having regard, in part, to the respective skills of those practitioners. The scans in question have been produced and examined by expert radiologists. The views of those practitioners are to be found in the reports which accompany the scans. The conclusions reached by the radiologists have been accepted by Dr Sun and Dr Ly. Dr Giblin has, apparently, viewed the scans and has reached a conclusion significantly different to that expressed by the radiologists. It is unclear as to whether Dr Machart has viewed the scans, however he also expresses a view which is very much at variance to that expressed by Dr Sequeira and Dr Wong.
78.Computed tomography (CT) is a sophisticated radiographic technique which is utilised by the medical profession as a diagnostic aid. Given that the specialist qualifications of Dr Sequeira and Dr Wong I am minded to give more weight to their views as to the proper interpretation of the scan findings than to the views expressed by Dr Giblin and Dr Machart. Having regard to the findings of Dr Sun being “right leg weakness in the L5 distribution” and that of Dr Liew noted at [71] above I am persuaded that, on the probabilities, the view of Dr Sequeira that there is present in the lumbar spine of the appellant evidence of a central and right lateral protrusion of the L5/S1 disc is correct. Having regard to Dr Liew’s findings on examination of the appellant’s cervical spine and his opinion that the appellant suffers “ongoing cervical pathology with right sided cervical neuralgia” I conclude that, on the probabilities, the view of Dr Wong that there is some central disc bulging at the C3/4 and C4/5 disc levels touching onto the thecal sac is correct.
79.The respondent has argued on this appeal that the absence of evidence concerning an MRI investigation and the absence of a supplementary report from Dr Liew permits the drawing of inferences noted in [62] above. Having reviewed the evidence and noting, in particular, the notation found in Dr Ly’s notes which appears at [31] above I find that, on the probabilities, the MRI investigation has not been conducted given that approval with respect to the cost of that procedure has not been given by the respondent's insurer. I note in passing that the suggestion made in submissions by the respondent that a subsequent report of Dr Liew may have been withheld is made without foundation and in all the circumstances is not a proper argument to advance on this appeal. I make that observation given that there exists a duty upon the parties to proceedings before the Commission to ensure that an arbitrator is not misled as to the true opinion of an expert witness. Adherence to such ethical standard is assumed by the Courts and no less by the Commission. In the absence of any evidence to suggest otherwise, I conclude not only that there has been no subsequent MRI investigation but that, for whatever reason, there has been no subsequent report produced by Dr Liew.
80.The assessment of 0% WPI certified by Dr Giblin is conclusively presumed to be correct (section 326(1)(a) of the 1998 Act). I reject the respondent’s submission that the parties are conclusively bound by any other matter that may be implied from the content of the MAC.
81.It may be seen that I have concluded that the true and correct view of the totality of the medical evidence before the Commission is that, on the probabilities, the appellant has sustained injury to her cervical spine and lumbar spine as demonstrated on the CT scans and as described by Dr Ly, Dr Liew and Dr Sun. The evidence presented in the appellant's case supports the proposition that she has been and remains incapacitated for her pre-injury duties. I have earlier made mention of the unresolved question as to the true nature of those duties. That question has not been agitated on this appeal and indeed little if any meaningful attention was given to the issue at the hearing. It is not disputed that the appellant was required to manipulate the pallet jack, a task which undoubtedly requires forceful activity. Having regard to the totality of the evidence including the unsatisfactory “statement” of the appellant which is unsigned and carries no endorsement concerning translation, I conclude that the appellant's work, on the probabilities, involved intermittent but regular heavy lifting. Such work, in my view, is beyond the appellant’s physical capacity by reason of work injury.
82.Having regard to my conclusions concerning incapacity for work it follows that the respondent's contention concerning error on the part of the Arbitrator in finding such incapacity persisted beyond 25 August 2008 must be rejected. Having regard to the nature of the injuries as found I conclude that such incapacity has persisted to the present.
83.Given my conclusions concerning the merits of the appeal the determination of the Arbitrator must be revoked. The Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2008] 5 DDCR 1 has expressed the view that in such circumstances it is preferable, if possible, that the Presidential member finally determine the matter (per Santow JA at [28] and [29]). Having regard to the circumstances of this matter I am of the view that it is desirable, and in conformity with the Legislature’s intent, that errors identified in the appeal are corrected without the need to remit the matter for further consideration by an arbitrator.
84.In the circumstances it is appropriate that the matter be re-determined in accordance with the decision as stated hereunder.
DECISION
85.The Arbitrator between [24] and [28] of reasons states the basis upon which he calculated the appellant's entitlement to weekly compensation during partial incapacity up until 16 December 2008. That reasoning is in accordance with authority and I respectfully agree with the Arbitrator's factual findings concerning the appellant’s probable earnings but for injury, her ability to earn and his calculation of entitlement. I gratefully adopt that reasoning and conclude that the appellant’s past and ongoing entitlement to weekly compensation is in the sum of $203.95.
86.Paragraph 1 of the Arbitrator's decision dated the 7 April 2009 is revoked and paragraphs 2 and 3 are confirmed. The following order is made in the place of paragraph 1: “1. Award for the applicant at the rate of $203.95 per week from 26 August 2008 to date and continuing pursuant to section 40 of the WorkersCompensation Act 1987”.
COSTS
87.The respondent is to pay the appellant's costs of the appeal.
Kevin O’Grady
Deputy President
29 July 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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